In this, the final post of the Private Military and Security Contractors Series, series editor Birthe Anders examines the current state of PMSC regulation, with special attention to the recently launched International Code of Conduct Association.
Strife Editors

* * *

There’s a new sheriff in town – but can he keep the peace?
by Birthe Anders

One of the main concerns about Private Military and Security Companies (PMSCs) is that their employees carry weapons in volatile situations and are not as well regulated as state forces. While armed guarding is only one part of the industry it is arguably the one that raises the biggest concerns over the effective control of potentially deadly force. However, with the recent launch of the International Code of Conduct Association, PMSCs have never been as well-regulated as right now – but is this enough?

In September 2013, a new regulatory body for PMSCs was established: the International Code of Conduct for Private Security Service Providers Association (ICoCA). The ICoCA is a non-profit organisation based in Geneva and is supposed to certify companies and monitor their compliance with the Code of Conduct for Private Security Service Providers (ICoC). The code contains provisions on company management, governance and the conduct of personnel, including on the use of force.[1] As of early November, 708 companies had signed up.[2] Thus monitoring its implementation is no small task. While some commentators have welcomed the ICoCA [3] and others condemned it as a poor attempt to legitimise PMSC’s work,[4] overall the launch of the ICoCA has not generated much discussion so far. Why is this? It might be due to confusion and uncertainty if this is an achievement worth celebrating. Even for long-standing followers of PMSC regulation efforts it is not yet clear what effect the ICoCA will have.

Recently Anton Katz, chair of the UN Working Group on Mercenaries warned of regulatory gaps created by differing national regulations that could lead to human rights violations.[5] The Montreux Document[6] and the ICoC were valuable, but they were not enough as ‘these initiatives are not legally binding and cannot be considered as complete solutions for the problems concerning PMSCs’.[7] While it is always good keep an ideal situation in mind (i.e. a legally-binding, international convention on PMSCs’ rights and obligations especially in war zones complemented by national legislation, all of them well-monitored and enforced of course), it is worth examining what we have right now. While not the same as a law, the ICoCA will monitor compliance with the ICoC for those PMSCs that signed up to it. So what we have right now is for the first time an oversight mechanism that is supported by companies, governments and advocacy groups at the same time.

For anyone not familiar with PMSC regulation, a brief overview is in order. In a nutshell, many laws and regulations apply to PMSCs and their employees, but few were specifically created for them. This can be problematic as even the best laws need monitoring and enforcement – inherently difficult in many contexts PMSCs operate in. On the national level, few states have addressed the issue. Exceptions are South Africa, the US and most recently Switzerland. On the international level, the UN Working Group on Mercenaries has published a Possible Draft Convention on PMSCs,[8] while the most prominent efforts are those initiated by the Swiss government: the Montreux process and the ICoC. The Montreux Document is aimed at states and (in a legally non-binding way) signatories acknowledge their obligations under human rights and international humanitarian law. In contrast, the ICoC is directed at companies. A central aspect of PMSCs regulation is its implementation. Nullo actore nullus iudex – if no one brings a claim forward there will be no investigation. Whithout adequate oversight AND enforcement, the best regulation is useless.[9] This brings us back to the ICoCA.

Once it is up and running, companies that signed up to the ICoC can – among other things – expect to have their performance monitored by the ICoCA. As one observer commented, the Association will institutionalize ‘the relationship between stakeholders’ as well as ensure ‘that PMSCs that sign on the ICoC actually conduct themselves accordingly’.[10] This has a lot to do with money. If the Association is not properly funded, oversight tools such as field visits will not take place. Companies pay according to their size, with small companies paying US$ 2.500, medium companies US$ 5000 and big companies US$ 9000 in the first year of membership, which increases slightly in the following year.[11] One member of the Steering Committee stepped down in summer 2013. Among his criticisms was company dues being set too low to allow the association to carry out independent monitoring of company behaviour. However, both the UK and the US have welcomed the ICoCA. The State Department might incorporate ICOCA as requirement into the bidding process (as well as to the ANSI-PSC 1 standard),[12] while the UK has announced that a national certification system will be created to measure companies’ implementation of the ICOC.[13] These announcements are significant as both countries are important PMSC clients.

Industry representatives were – together with government and civil society representatives – involved in the creation of the ICoCA, yet it goes beyond previous attempts at industry self-regulation. That is a big step. Arguably, we can now only judge the ICoCA by what’s on paper. The Association is currently looking for an executive director,[14] so it will be some time before it is up and running. How robust its monitoring and complaints procedures are remains to be seen when first cases of misconduct are reported. We all remember that Blackwater simply withdrew from the US industry association ISOA and its code of conduct in light of an impending misconduct investigation a few years ago.

So the answer to the introductory question depends on whether you are a glass half-full or half-empty kind of person. Yes, the success of the ICoCA remains to be seen. Yes, it applies only to companies that signed up to it and yes, it does not eliminate the need for individual states to regulate companies within their jurisdiction. It may be a small step, but it is a critical move towards a more comprehensive regulation of the industry, especially by differentiating between companies that committed to the ICoC and those that did not.